I would be remiss to not spend a few minutes talking about last week’s huge news that The Supreme Court upheld the Affordable Care Act as constitutional. I have some (uneducated) thought to add to yonder discussion:
I think that first, and foremost, that Chief Justice John Roberts wanted to hit something of a reset button on the idea of what the role of the Supreme Court is. It’s easy to look at a lot of decisions by the Roberts court and say that it’s trying to advance an extremely conservative agenda (Citizen’s United, DC v Heller, etc.). The way this case was decided is almost his way of saying, “Hey, slow down there. That is not what this court is about.” In fact, if you read the first few pages of the opinion, it reads like a lesson in civics, especially this money quote:
We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.
That’s pretty heady stuff. Roberts could have easily rested back on his laurels, run with his opposition to this thing on the Commerce Clause grounds, and overturned the whole damn thing. It would have been easy, and expected. Yet, for one fleeting moment, rule of law and judicial independence (or at least the appearance of it) actually took precedent over politics.
That’s not to say it’s all peaches and cream here. If you really parse through how we got to where we are, there are some really big potential landmines here. The most obvious one is that they did not decide the thing was legal on the Commerce Clause grounds. That’s troubling, because it’s been the way that we’ve kept most Civil Rights and other important legislation on the books for 50+ years now. I’m not saying that Roberts had an agenda here (or at least it’s not as obvious as guys like Scalia and Thomas), but that line got parsed very carefully. Now you have this whole idea about reading carefully the ways in which the Feds can regulate commerce. I’m not enough of a Constitutional scholar or law nerd to really say how this affects things going forward, but this really feels like a real future headache. It’s very possible that we won a battle (on a really technical point), but set ourselves up to lose the war.
I still also feel like Obama and the Democrats are going to assume that this feat, much like killing Bin Laden, gives them a slam dunk in November. I think nothing can be further from the truth. The fact is that the Obama administration never sold the country the right way on this. This law should help a lot of people, but a fair number of people still want to get rid of the thing. Couple this with the fact that the three guys who now basically control all politics in this country (the Koch brothers and Sheldon Adelson) are going to (legally!) dump umpteen millions into electing people who will overturn the thing and given how those are the people that at least look like they stick to their guns, our “educated” electorate may just put them in office. Losing on the ACA may be the best thing that ever happened to Mittens Romney in his life.
All in all, I don’t know what will come to pass. I should be happier about this, but I see a lot of storm clouds gathering on the horizon, and I worry what will come next.